Summary of a Recent
Judicial Development in
Environmental Law

Government Contractor Defense Bars Personal Injury Actions
for Alleged Agent Orange Injuries

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In In re "Agent Orange'' Product Liability Litigation, 304 F. Supp. 2d 404 (E.D.N.Y. 2004), the United States District Court for the Eastern District of New York granted Defendants' motion for summary judgment dismissing the products liability action brought by Vietnam veterans against the manufacturers of Agent Orange, an herbicide used during the Vietnam War. Veterans alleged various personal injuries caused by exposure to the herbicide. Because Defendants satisfied all government requirements regarding shipping and labeling, the court held that Plaintiffs' product liability claims were barred by the government contractor defense.

Background

During the Vietnam War, the United States government authorized the use of Agent Orange, an herbicide usually sprayed from aircraft and intended to reduce foliage creating a better view of enemy territory. Id. at 407. Thousands of Vietnam veterans sustained severe injuries stemming from exposure to Agent Orange. Id. at 407. Defendants manufactured and sold the herbicide to the United States government. Id. at 408. To settle a class action lawsuit brought by the veterans against Defendants, Defendants set up the Agent Orange Settlement Fund. Id. The Fund was designed "to terminate any liability [Defendants] might have-present or future-for the production of Agent Orange." Id. However, Plaintiffs in the instant action discovered their injuries after the Fund had been completely dispersed. Id. They claimed that they were not properly represented in the class and thus were not bound by the settlement agreement. Id. Plaintiffs brought actions "based on strict products liability in tort, including design defects, manufacturing defects, failure to warn, breach of implied warranty, negligence, fraud, and misrepresentation . . . ." Id. Defendants claimed that the government knew of the dangers associated with herbicide, that they mixed and labeled the herbicide according to government specifications, and that they would have labeled herbicide with its typical warnings but for the government's contrary request. Id. at 409. In short, Defendants claimed the government contractor defense applied. Id.

Arguments

Defendants argued that Plaintiffs' claims were barred by the government contractor defense as explained by the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988). Id. at 432.

Analysis and Holdings

In Boyle, the United States Supreme Court set forth the government contractor defense as follows:

Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.
Id.

To successfully assert the government contractor defense, a party must prove all three elements. Id. To satisfy the first element, a party must show that the government was involved in the design process. Id. at 434. The second element requires "that the product ordered must have conformed to the government's specifications." Id. The third and final element "requires that the contractor warn the government 'about the dangers in the use of the equipment that were known to the supplier but not to the United States.'" Id. at 435. After outlining the government contractor defense, the court applied the factors to Plaintiffs' design defect, failure-to-warn, and manufacturing defect claims. Id. at 441-42.

Applying the factors to Plaintiffs' design defect claim, the court held that government specifications for Agent Orange differed substantially from the civilian version of the herbicide, the herbicide delivered matched the government's specifications, and the government knew about the dangers associated with Agent Orange. Id. at 441. For these reasons, the government contractor defense barred Plaintiffs' design defect claims.

As applied to Plaintiffs' failure-to-warn claims, the court held that the government had control over the labeling, the product delivered was labeled according to government specifications, and the government knew about the dangers associated with Agent Orange. Id. at 441-42. For these reasons, the government contractor defense also barred Plaintiffs' failure-to-warn claims.

Finally, the court turned to Plaintiffs' manufacturing defect claims and found that "the Agent Orange produced by defendants conformed to the government's precise specifications." Id. at 442. Therefore, Plaintiffs' manufacturing defect claims were also barred by the government contractor defense.

The case was decided on February 9, 2004.